How many members of a Texas state board or council do you need for a quorum, and does it count empty seats?

Texas AG Opinion JM-1117: How Is a Quorum of a State Council Counted?

Plain-English summary

The commissioner of the Texas Rehabilitation Commission asked the Attorney General a set of housekeeping questions about the Texas Council on Disabilities, a 23-member advisory body set up under chapter 132 of the Human Resources Code. The most practical question was about quorum: when the statute says a majority of the members is a quorum, does "majority" mean a majority of all 23 seats the law creates, or just a majority of the members who happen to be appointed and sitting at the moment?

The Attorney General answered that a quorum is measured against the number of members the law provides for, not the number actually sitting at any given time. So for a 23-member council, a quorum is 12, and vacant seats do not lower that number. This is the standard Texas rule, and it matters in practice: a board cannot make it easier to act by leaving seats empty.

The commissioner also flagged what looked like a drafting error. Subsection (a) says the council has 23 members, but the list of appointing authorities and agencies in the other subsections seemed to add up to more. The Attorney General traced the confusion to 1985, when two separate bills amended the same subsection in different orders and left the agency list with two duplicate entries (the Texas Employment Commission and the Commission on Alcohol and Drug Abuse each appear twice). Once the duplicates are set aside, only 11 agencies are named, and the total comes back to 23. So there was no real inconsistency.

Finally, the commissioner asked about subsection (g), which lets the governor designate additional agencies to appoint representatives. The Attorney General concluded those added members are full-fledged members who serve in the same capacity, and with the same right to vote, as members appointed under the other subsections. The stated size of 23 did not cap the council; it reflected a conventional way of drafting statutes that create boards, not an intent to freeze the number.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Council on Disabilities and chapter 132 of the Human Resources Code have been amended and reorganized over the years, and the agencies named in the 1989 version of the statute have themselves been renamed or restructured. The durable point is the quorum rule (a majority of the seats the law provides for, counting vacancies), which reflects a general principle of Texas law rather than anything unique to this council.

Who this opinion affected (as of 1989)

The Texas Council on Disabilities and similar state boards: The opinion told them how to count a quorum. With 23 seats, 12 members were needed to act, and leaving seats vacant did not reduce that number. It also confirmed that governor-designated members counted fully toward membership and could vote.

The governor's office: The opinion confirmed the governor's power under subsection (g) to add agencies (and therefore members) to the council, and that those added members had full standing, so the council's size was not locked at 23.

Anyone relying on council action: Because a quorum was fixed at a majority of the statutory seats, a decision made without 12 members present could be challenged as taken without a quorum, regardless of how many seats were filled at the time.

Common questions

Does a quorum count empty seats on the board?
Yes. The Attorney General concluded that a quorum is a majority of the number of members provided for by law, not a majority of those currently sitting. Vacancies do not lower the quorum.

How many members were needed for a quorum of the 23-member council?
Twelve. A majority of 23 is 12, so 12 members constituted a quorum.

Do members the governor adds under subsection (g) get to vote?
Yes. The opinion concluded that persons appointed under subsection (g) are full-fledged members who serve in the same capacity as members appointed under the other subsections, which includes the right to vote.

Was the council really larger than 23 members?
No. The list looked too long because two 1985 bills amended the agency subsection in different orders and left two duplicate entries. Counting each agency once brings the total back to 23.

Background and statutory framework

Section 132.002 of the Human Resources Code established the Council on Disabilities and set out how its 23 members are chosen: the governor, lieutenant governor, and speaker each appoint a set of members (subsections (b), (c), and (d)), and the governing boards of a list of named state agencies each appoint one representative (subsection (e)). The apparent overcount in the agency list came from the 1985 legislative session, when two bills (Acts 1985, 69th Leg., ch. 603, § 24, at 2278, and ch. 619, § 18, at 2305) made the same substantive change (adding the Texas School for the Deaf and the Texas Employment Commission) but set the entries in a different order, leaving the Texas Employment Commission and the Commission on Alcohol and Drug Abuse each listed twice. As originally adopted in 1983, the council had 21 members (Acts 1983, 68th Leg., ch. 308, § 1, at 1636); the 1985 amendments raised subsection (a) to 23. Reading the duplicate entries as a single agency each, the Attorney General concluded subsection (a)'s figure of 23 was not inconsistent with the appointment subsections.

On the quorum question, the opinion relied on the settled rule that a quorum is defined in terms of the number of members provided for by law, not the number actually sitting on a board or council at any one time. Walker v. Walter, 241 S.W. 524, 528 (Tex. Civ. App. - Fort Worth 1922, no writ); Letter Opinion LO-88-45 (1988); see Gov't Code § 311.013(b). Applied to a 23-member council, 12 members constitute a quorum.

On subsection (g), which lets the governor designate other agencies to appoint representatives to serve on the council, the opinion read the plain language ("serve on the council") to make those added persons full members, the same phrasing subsection (f) uses for the private-citizen appointees. It concluded they serve in the same capacity as members appointed under subsections (b) through (e). Although subsection (a)'s fixed figure of 23 sat awkwardly with subsection (g)'s power to add members, the opinion treated the 23-member statement as a conventional drafting form for statutes creating boards and committees rather than a cap on membership (cf. Hum. Res. Code § 91.011 (Texas Commission for the Blind); id. § 101.001 (Governor's Board on Aging)).

Citations

Statutory authorities:

• Human Resources Code § 132.002 (composition of the Council on Disabilities; appointment subsections (a)-(g)); § 132.004 (majority of members constitutes a quorum)
• Human Resources Code § 91.011 (Texas Commission for the Blind); § 101.001 (Governor's Board on Aging) (cited by comparison)
• Government Code § 311.013(b) (statutory construction)
• Acts 1983, 68th Leg., ch. 308, § 1, at 1636 (original 21-member council); Acts 1985, 69th Leg., ch. 603, § 24, at 2278, and ch. 619, § 18, at 2305 (overlapping amendments raising the council to 23 and adding agencies)

Cases:

• Walker v. Walter, 241 S.W. 524 (Tex. Civ. App. - Fort Worth 1922, no writ) (quorum measured by members provided for by law)

Attorney General opinions referenced:

• Letter Opinion LO-88-45 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1117
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1117.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

November 17, 1989

Mr. Vernon M. Arrell
Commissioner
Texas Rehabilitation Commission
4900 North Lamar Blvd.
Austin, Texas 78751-2316

Opinion No. JM-1117

Re: What constitutes a quorum of the Texas Council on Disabilities, and related questions (RQ-1789)

Dear Commissioner Arrell:

You ask several questions about the composition of the Council on Disabilities, which is provided for in chapter 132 of the Human Resources Code.

Section 132.002 of the Human Resources Code provides:

(a) The council on disabilities is established and is composed of 23 members.

(b) The governor shall appoint a person to serve as chairperson of the council. In addition, the governor shall appoint one provider, one private citizen, and one disabled person or parent or guardian of a disabled person to serve on the council.

(c) The lieutenant governor shall appoint one senator, one provider, one private citizen, and one disabled person or parent or guardian of a disabled person to serve on the council.

(d) The speaker of the house shall appoint one member of the house of representatives, one provider, one private citizen, and one disabled person or parent or guardian of a disabled person to serve on the council.

(e) The governing board of each of the following agencies shall appoint one person to represent that agency on the council:

(1) the Texas Department of Human Services;

(2) the Texas Department of Mental Health and Mental Retardation;

(3) the Texas Department of Health;

(4) the Central Education Agency;

(5) the Texas Rehabilitation Commission;

(6) the Texas Commission for the Deaf;

(7) the Texas Commission for the Blind;

(8) the Texas Department on Aging;

(9) the Texas Commission on Alcohol and Drug Abuse;[Footnote 1]

(9) the Texas Employment Commission;[Footnote 2]

(10) the Texas School for the Deaf; and

(11) the Texas Employment Commission;[Footnote 3]

(11) the Texas Commission on Alcohol and Drug Abuse.[Footnote 4]

You are concerned that the statement in subsection (a) of section 132.002 that the commission is composed of 23 members is inconsistent with the number of members listed in subsections (b), (c), (d), and (e) of section 132.002. You ask what the number of commission members should be.

The reason it appears that there are more than 23 members is that subsection (e) contains two redundant entries. When section 132.002 was adopted in 1983, subsection (a) stated that the council was composed of 21 members. Subsection (b) provided for four members to be appointed by the governor; subsection (c) provided for four members to be appointed by the lieutenant governor; and subsection (d) provided for four members to be appointed by the speaker of the house. Subsection (e) provided that each of nine named state agencies was to appoint a member. The total number of members listed under subsections (b), (c), (d), and (e) was 21. Acts 1983, 68th Leg., ch. 308, § 1, at 1636.

In 1985 the legislature adopted two different bills that amended subsection (a) to provide that the council was composed of 23 members and added the Texas School for the Deaf and the Texas Employment Commission to the agencies listed in subsection (e). Acts 1985, 69th Leg., ch. 603, § 24, at 2278 [hereinafter chapter 603]; id. ch. 619, § 18, at 2305 [hereinafter chapter 619]. Although both bills made the same substantive changes to subsection (e), each one set out the individual entries under subsection (e) in a different order. Chapter 603 listed the School for the Deaf as number (10) and the Texas Employment Commission as number (11). Chapter 619 listed the Texas Employment Commission as number (9) and the School for the Deaf as number (10) and moved the Texas Commission on Alcoholism and Drug Abuse from number (9) to number (11). As a result of the inconsistent numbering in those two bills, the list of agencies in subsection (e) now contains 13 entries. Because the Texas Employment Commission and the Commission on Alcoholism and Drug Abuse are each listed twice, however, only 11 different agencies are named in those 13 entries. Consequently, subsection (a) of section 132.002, which provides that the council shall consist of 23 members, is not inconsistent with subsections (b), (c), (d), and (e) of that section.

You also ask about section 132.004, which provides that a majority of the members of the council constitutes a quorum. You ask whether "the 'majority' relates to the total membership of the council, or only to those members currently appointed." See Gov't Code § 311.013(b). A quorum is defined in terms of the number of members provided for by law, not by the number actually sitting on a board or council at any one time. Walker v. Walter, 241 S.W. 524, 528 (Tex. Civ. App. - Fort Worth 1922, no writ); Letter Opinion LO-88-45 (1988). Therefore, 12 members of the 23-member board would constitute a quorum.

Finally, you ask about subsection (g) of section 132.002, which provides:

The governor may designate other agencies to appoint representatives to serve on the council.

You ask whether persons appointed under subsection (g) have the same standing as other members of the board and whether such persons have a right to vote. The plain language of subsection (g) indicates that the additional persons are full-fledged members of the council. It provides that they are to "serve on the council." Subsection (f) refers to the private citizens appointed by the governor, lieutenant governor, and speaker of the house as being appointed to "serve on the council." See id. (b), (c), (d). Consequently, we conclude that persons appointed under subsection (g) serve in the same capacity as persons appointed under subsections (b), (c), (d), and (e).

Subsection (a) of section 132.002, which provides that the council shall consist of 23 members, is inconsistent with subsection (g), which allows the governor to increase the number of members on the council. We think, however, that the statement in subsection (a) that the council consists of 23 members reflects a conventional form for statutes that create boards and committees rather than a legislative intent to set a cap on the number of members of the council. Cf. Hum. Res. Code § 91.011 (Texas Commission for the Blind); id. § 101.001 (Governor's Board on Aging).

SUMMARY

A quorum of the Council on Disabilities is a majority of the number of members provided for by law. Persons appointed to the council under subsection (g) of section 132.002 of the Human Resources Code serve in the same capacity as persons appointed under subsections (b), (c), (d), and (e) of that section.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

Footnote 1: This is the text of (9) as amended by Acts 1985, 69th Leg., ch. 264, § 30, at 1239; id. ch. 603, § 24, at 2278; id. ch. 632, § 11, at 2338; id. ch. 793, § 27, at 2711.

Footnote 2: This is the text of (9) as amended by Acts 1985, 69th Leg., ch. 619, § 18, at 2305.

Footnote 3: This is the text of (11) as added by Acts 1985, 69th Leg., ch. 603, § 24, at 2778.

Footnote 4: This is the text of (11) as amended by Acts 1985, 69th Leg., ch. 619, § 18, at 2305; id. ch. 632, § 11, at 2338.